Approaching 50 Years: Title IX's 'Competitive Skill' Exception to the Prohibition on Single-sex Sports
10 Miss. Sports L. Rev. 153 (2021)
28 Pages Posted: 8 Dec 2020 Last revised: 11 Nov 2021
Date Written: October 9, 2020
Because of the tendency for males to have an advantage over females in sports due to inherent physical differences, most school sports teams comprised of post-pubescent athletes are separated by sex in order to maximize the number of opportunities available for females as well as males. Indeed, while Title IX of the Education Amendments of 1972 generally prohibits separating school sports teams on the basis of sex, it expressly permits teams to be sex-segregated where the sport is a “contact” sport or “where selection for…teams is based upon competitive skill.” It is therefore apparent that contact sports teams are permitted to remain sex-segregated due to concerns centered on physical safety, and non-contact teams may be segregated due to concerns that males would dominate the competition and take every available roster spot if allowed to compete against females.
But even with these general principles in mind, it is not clear precisely what the language of the “competitive skill” exception means, or how broadly that exception to Title IX’s general prohibition on sex-segregated sports applies. The recent experiences of four high school boys in Wisconsin, South Dakota, and Minnesota illustrate the need for a careful examination of the purpose and meaning of the competitive skill exception for non-contact sports, and highlight the dangers of limiting athletic opportunities for students based on stereotypes and outdated assumptions about athletic preferences that may occur in the absence of a fully considered understanding of the exception’s meaning.
In response to a series of legal challenges against a Minnesota rule that limited high school competitive dance teams to girls, the United States Court of Appeals for the Eighth Circuit in 2019 issued a preliminary injunction against the rule. However, the court declined to address whether the rule was permissible under Title IX’s competitive skill exception. That is unfortunate, as the Eighth Circuit had the opportunity to be the first appellate court to substantially interpret this important exception and provide much needed clarity on its meaning and application.
The aim of this Article is to take on that important task and attempt to determine the meaning of the competitive skill exception. A full understanding of the exception is necessary to determine whether all non-contact school sports teams may be limited to a single sex under Title IX. If so, then Title IX’s general prohibition against single-sex sports is effectively nullified by its exceptions, and future litigants lack an important avenue for statutory recourse for discrimination on the basis of sex.
Keywords: sex discrimination, women's sports, men's sports, girls sports, boys sports, competitive cheerleading, competitive cheer, competitive dance, competitive dance team, 14th amendment, fourteenth amendment, equal protection clause, equal protection, proportionality, title nine, competitive skill
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